ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 2008 in the Sacramento County Superior Court of conspiracy to commit murder and attempted murder along with enhancements that a principal discharged a firearm causing great bodily injury and that the crime was perpetrated to benefit a criminal street gang. Petitioner received a sentence of seventy-five years to life imprisonment. Petitioner raises three claims in this federal habeas petition; specifically: (1) insufficiency of the evidence to support the conviction of a conspiracy to commit murder ("Claim I"); (2) the trial court should have given a jury instruction of felony assault as a lesser included offense of attempted murder ("Claim II"); and (3) the trial court violated petitioner's Confrontation Clause rights when it permitted Detective Quinn to testify as to the meaning of gang lingo ("Claim III"). For the following reasons, the petition seeking federal habeas relief should be denied.
II. FACTUAL BACKGROUND*fn1
On the afternoon of March 15, 2007, the victim, Timothy Hurst (aka T-Money) and Taurus Baker (aka Stretch) were sitting in a van next to a park in South Sacramento waiting for their buyer to arrive to complete a drug deal. Baker was a member of the Crips criminal street gang. As they sat in the van, co-defendant Lerome Franklin (aka Rome) and Anthony Colbert (aka Ant) exited a tan Buick that pulled up alongside the van, and approached the van on foot. Franklin and Colbert were members of the Del Paso Heights Bloods gang. Crips and Bloods are enemies. Franklin and Colbert told Hurst to get out of the van. Franklin tried to get inside the van, but the sliding door was broken. Colbert told Hurst, "This 'aint between you." Hurst was not a member of a gang. Franklin pulled out a gun.
Just as Franklin pulled out his gun, a police car drove up. The officers observed a struggle going on in the front passenger seat. They identified Franklin as one of the men outside the van. Franklin was inside the passenger window of the van with his arms outstretched, struggling with the passenger of the van. Colbert yelled, "the Police," and Franklin threw the gun in the van. Colbert jumped back into the Buick, which then took off. Franklin started running. He was soon caught and arrested, and transported to the Sacramento County main jail.
While Franklin was in the holding tank at the main jail, he made a phone call to his "girl" who proceeded to make a series of three-way calls at his direction. During one conversation he told someone to tell "YG" to "get on wa -- uh, Money." The person on the other end of the line said, "Who?" Franklin responded, "Money. You hear me?" He asked, "You know who I'm talking about, right?" The person indicated he knew who Franklin was talking about.
Finally, Franklin got through to YG, Young General, (aka defendant Martin). The following conversation took place: "Franklin: Yeah, ma, you gotta get on Money, bru. "YG: Huh? "Franklin: You gotta get on Money.
"YG: Money? "Franklin: Yeah. "YG: We -- how much? . . . "Franklin: No nigger. Not chalupa, nigger, Money. "YG: Oh -- I'm trying to comprehend. . . . "Franklin: Arden and Del Paso, man, where your whip got snatched. "YG: Oh, okay. Yeah, yeah, yeah, yeah. "Franklin: You know I'm talkin' bout? "YG: Yeah. "Franklin: You're my momma, nigger. "YG: He the fault? "Franklin: Yeah. "YG: Well, on TMG I'm about to go right now, nigger. "Franklin: You feel me, nigger? "YG: Yeah "Franklin: Nigger, MOB, my nigger. Ma -- man -- man, that nigger, blue, you feel me, they gonna tell the police, nigger, nigger I tried to rob him. You feel me? "YG: What? "Franklin: You feel me?
YG: Little TMG (Unintelligible) nigger is -- you are (Unintelligible) my momma, bro. You already know, blood, I love ya, blu. My momma, nigger, tooken care of, my nigger. And nigger's -- "Franklin: Yeah. "YG: -- (Unintelligible) nigger. "Franklin: TMG, my nigger, man. Man, that's some cold shit, though, bru. "YG: Well, my mother, blu, nigger. You ain't gotta say nothing else, bro. "Franklin: Yeah, for real, for real. . . . "YG: [U]h, they -- they said something -- they -- they found something or some shit. "Franklin: Yeah, they found the banger in them nigger's -- in their whip. . . . you feel me, ma -- ma -- man, let that little ho-ass nigger know, though. You feel me?"
After talking to Martin, Franklin told his "girl" to call Big Row (Rome). [FN 1] While talking to Franklin, Big Rome told him, "YG calling right now on another line." Franklin told Big Rome to see what YG had to say. After speaking with YG, Big Rome came back on the line to Franklin and said, "Yeah, he 'bout to -- you know wha I mean -- to go pop-pop-pop -- on young boy." Franklin responded, "Yeah man . . . ." Big Rome continued, "And, uh, it's gravy and shit. And, uh, you feel me? . . . Said -- he said he gonna do that, like he -- immediately right now. . . . And, um, yeah, them niggers got the guy and questioned him. Uh, nigger, I don't know what them niggers thought they were getting down with. . . ."
[FN 1] Franklin's nickname is Little Rome. His older brother Jerome Franklin's nickname is Big Rome.
A few hours after this call, at approximately 11:00 p.m. Hurst and Colbert were walking in the area of El Camino and Del Paso Boulevard, where they encountered several men at a motel, including Martin (YG). One of the men said to Hurst, "So I heard you snitching." Then the man challenged him to a fight, "before YG hit you with the heat." At that moment, YG started shooting. Hurst felt the first two shots in his face, but managed to run away. He was eventually taken to the University at Davis Medical Center and treated. The police questioned him while he was there, but he lied and said he did not know who had shot him.
Hurst suffered gunshot wounds to the chest, thigh, and hand. He had a fractured scapula, fractured cervical vertebra, and several fractured ribs. He suffered damage to his lungs, and a bullet lodged next to his neck.
At approximately 11:18 that night, another call was recorded from Franklin to an unidentified male. During the conversation, the male said, "There's hella of 'em in the air, boy. Hella flies flying around this motherfucker. . . . I don't know. Man, there's hella flies flying around this motherfuckin' (Unintelligible). It's over." Franklin placed one more call to Martin at approximately 11:37 p.m. Franklin told Martin, "I only got to say one (Unintelligible), I love you, nigger." Franklin told Martin that he was his "savior, man."
Robert Quinn was a detective with the gang suppression unit of the Sacramento Police Department. He was unaware of the above events when, in October 2007, he contacted Hurst in connection with a gang-related homicide. He talked to Hurst to see if Hurst could identify some of the people in the gang. Hurst was on probation at the time, and gave police his unwilling cooperation. As Hurst looked through the pictures, he identified one of the photos as a picture of the person who shot him back in March. Hurst did not want to tell Detective Quinn who the person was because he had been shot for snitching, and he did not want to snitch again. Finally, Hurst stated that YG shot him, and pointed to a picture of defendant Martin.
Hurst was placed in the witness protection program and relocated from Sacramento. He gave a statement regarding his shooting and testified at trial.
Hurst identified three other men who were present when he was shot: Giovanni Figueroa (aka Tay), a person known as Country, and Steven Hendrix (aka Steve-O). Hendrix was associated with the Trigger Mob street gang, a part of the Del Paso Heights Bloods.
Detective Quinn proceeded to question Hendrix, and took a statement from him, portions of which were played for the jury when Hendrix's trial testimony was not forthcoming. In the recorded statement, Hendrix identified Martin as the person who shot Hurst, and identified him as a Trigger Mob member. Detective Quinn conducted a videotaped interview with defendant Franklin. During the interview, Franklin stated he had never heard of anyone called T-Money (Hurst), and that he had not talked to YG (Martin) since he had been in jail. Quinn told Franklin that he had tapes of his telephone conversations in which he talked about T-Money and talked to YG (Martin). Franklin refused to explain the conversations.
The trial court accepted Detective Quinn as the prosecution's gang expert. He testified that the Bloods are the predominant Black gang in Sacramento. There are numerous sets of Bloods in the Sacramento area, broken down by geographic area. These sets are further broken down into subsets. Thus, the Del Paso Heights Bloods further break down into Elm Street, True Heights Villains, Trigger Mob (TMG), Beast Mod, and Flat Dogs, to name a few. TMG is part of Del Paso Heights Bloods. Their primary activities are robbery, assault with a deadly weapon, murder, narcotics dealing, burglary and auto theft. It has roughly 20 to 25 members. Defendant Franklin is a validated member of TMG, and admitted his association with the Del Paso Heights Bloods. Martin is also a validated member of the Del Paso Heights Bloods, subset TMG.
Detective Quinn testified to his knowledge of gang slang. He stated that "banger" and "clapper" are words used for gun. "Whip" is slang for car. "Chalupa" means cash." "TMG" and "MOB" both refer to Trigger Mob. "Flies flying around" means someone or something has died.
Detective Quinn testified the phrase "get on someone" could be used in multiple contexts. It could mean to put pressure on someone, as to get on someone about getting a lawyer. The phrase "get it on" would mean to party or use narcotics. He was then asked what the phrase would mean under the hypothetical scenario where a "Del Paso Heights Blood member perceives one witness is snitching on him, and he in turn calls another Blood member and says, hey, get on this witness. To which the other Blood member replies, is he the fault? And the original caller responds, yeah. And then later on in the conversation says let that punk ass know, in that context. What does 'get on' mean . . . ." Detective Quinn replied that in that context it would mean to go shoot that person or kill them so that there would not be any witnesses.
The prosecutor then posted another hypothetical: "Let's assume you have a Del Paso Heights Blood subset Trigga Mob member who goes out in broad daylight with another Del Paso Heights Blood subset Trigger Mob member to shoot, kidnap, or rob a 29th Street Crip. [¶] During the robbery, the police pull up. As one of the Del Paso Heights Blood gang members is pulling his firearm, he drops the firearm, runs from that robbery or assault scene, sees witnesses talking with police officers, is then booked into the Sacramento County Jail, makes a phone call to another Del Paso Heights Bloods subset Trigga Mob member where he says -- the phrase is that I just described, get on this witness that he saw earlier during his arrest, to which the other person replies is he the fault, and the original caller responds, yeah, and then shortly thereafter let that punk ass know, and then later on that night the person who received the phone call, that validated Del Paso Heights Trigga Mob member, goes out and locates the witness, has another person confront him about being a snitch, and then right after that, from point blank range, pulls out a revolver and fires off several rounds at his head, and then after he falls and is [lying] on the ground is firing several rounds at his back and legs, critically wounding the individual, do you have an opinion as to whether or not that crime would benefit the Del Paso Heights Bloods?" Detective Quinn responded that the crime would benefit the gang for multiple reasons. It would serve to keep the gang member out of jail, to let other people know that this is what happens if you talk to the police, and would establish respect among the Del Paso Heights Bloods.
(Resp't's Answer Ex. A at p. 3-11.)
Petitioner appealed from his judgment of conviction to the California Court of Appeal for the Third Appellate District. (See Resp't's Lodged Doc. 2.) The California Court of Appeal affirmed the judgment of conviction. (See Resp't's Answer Ex. A & Resp't's Lodged Doc. 6.) Petitioner's petition for rehearing in the California Court of Appeal was subsequently denied. (See Resp't's Lodged Doc. No. 6.) Petitioner then filed a petition for review in the California Supreme Court which was summarily denied. (See Resp't's Lodged Doc. No. 8.)
In June 2011, petitioner filed the instant federal habeas petition in this court.
Respondent filed an answer in September 2011 and petitioner filed his ...